Victims' Rights and Victims' Wrongs: Comparative Liability in Criminal Law

By Vera Bergelson | Go to book overview

6

THE DEFENSE OF COMPARATIVE CRIMINAL LIABILITY

FACTORS RELEVANT TO THE MITIGATION
OF THE PERPETRATORS' LIABILITY

In the earlier chapters of this book, my goal was to explore and formulate a general principle - that the victim's conduct can change the balance of rights and responsibilities between the victim and the perpetrator, and as a result, mitigate or eliminate the perpetrator's liability. Yet this general principle may not be translated into a criminal defense unless a more particular question is addressed: assuming the victim was instrumental in producing his own injury, how shall we compare his involvement with that of the perpetrator's, and to what extent shall we reduce the perpetrator's liability? To answer this question, one needs to weigh numerous factors, such as the magnitude of the affected rights of the perpetrator and the victim; the respective causative roles played by the perpetrator and the victim; and their relative culpability (including the nature of their conduct, the knowledge possessed by the participants, their individual capacities to avoid harm, the significance and value of purposes sought by their activities, the foreseeability and magnitude of the risk, and other factors).1 Depending on the specifics of each case, different considerations may be more or less important.


The Magnitude of the Affected Rights

The “rights” question involves two inquiries: does the law recognize the affected rights of the perpetrator and the victim, and what is the comparative value assigned by the law to those rights? For example, I have a legally protected right not to be slapped on the face. This right, like any right to bodily

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